Citation Nr: 0605644
Decision Date: 02/28/06 Archive Date: 03/01/06
DOCKET NO. 05-05 183 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for obstructive sleep apnea
syndrome.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
Patricia A. Talpins, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1981 to
September 2003.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, that denied the veteran's claim of
entitlement to service connection for sleep apnea.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
A preliminary review of the record with regard to the
veteran's claim of entitlement to service connection for
obstructive sleep apnea syndrome discloses a need for further
action prior to final appellate review. The Board finds that
appropriate statutory and regulatory notice has not been
provided to the veteran in connection with his claim, and
this procedural defect must be remedied prior to the
continuation of this appeal.
In this regard, the Board notes that VA laws and regulations
dictate that upon receipt of a complete or substantially
complete application for benefits, VA is required to notify
the claimant and his or her representative, if any, of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim. 38 U.S.C.A. §§ 5103,
5103A, 5107(a) (West 2002 & Supp. 2005); 38 C.F.R.
§ § 3.159(a)-(c) (2004); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
In this case, the veteran was sent a letter dated in March
2004 which stated that the RO was working on his claim for
"an increase in service-connected disability compensation
benefits for sleep apnea" (emphasis added). This letter
requested that the veteran submit evidence showing his
"service-connected condition has gotten worse," and he was
not informed of the evidence necessary to substantiate his
service-connection claim for obstructive sleep apnea
syndrome. Thus, the Board finds that the March 2004 letter
was inadequate for purposes of providing the veteran with
appropriate notification with respect to his claim.
In addition to the foregoing, the Board observes that the
veteran submitted additional medical evidence in July 2005 in
support of his claim. Since this evidence was submitted
subsequent to the case being certified to the Board, the
AMC/RO has not had an opportunity to consider these records.
In view of the above, this case is being returned to the RO
via the AMC, and the VA will notify the veteran if further
action on his part is required.
Accordingly, this case is REMANDED for the following actions:
1. As described above, the AMC should
provide, with respect to the veteran's
claim of entitlement to service
connection for sleep apnea, notice
consistent with the requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1)
2. When the action requested has been
completed, the case should be reviewed
by the AMC on the basis of the
additional evidence, including the
evidence submitted by the veteran in
July 2005. If the benefit sought is not
granted, the veteran should be furnished
a Supplemental Statement of the Case and
be afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The veteran is free to submit any additional
evidence and/or argument he desires to have considered in
connection with his current appeal. Kutscherousky v. West,
12 Vet. App. 369 (1999). No action is required of the
veteran unless he is notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
J. A. MARKEY
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).